10th IUCN Academy of Environmental Law Colloquium

10th IUCN Academy of Environmental Law Colloquium
More than 250 environmental experts from 35 countries gather at the University of Maryland for the 10th Colloquium of the IUCN Academy of Environmental Law in July 2012

March 2013 Environmental Field Trip to Israel

March 2013 Environmental Field Trip to Israel
Maryland students vist Israel's first solar power plant in the Negev desert as part of a spring break field trip to study environmental issues in the Middle East

Workshop with All China Environment Federation

Workshop with All China Environment Federation
Participants in March 12 Workshop with All China Environment Federation in Beijing

Winners of Jordanian National Moot Court Competition

Winners of Jordanian National Moot Court Competition
Jordanian Justice Minister Aymen Odah presents trophy to Noura Saleh & Niveen Abdel Rahman from Al Al Bait University along with US AID Mission Director Jay Knott & ABA's Maha Shomali

Sunday, November 28, 2010

Global Tiger Forum, ICCAT Conference, Gulf Oil Spill Update, COP-16 in Cancun (by Bob Percival)

Last week representatives of the 13 countries where tigers still exist in the wild gathered in St. Petersburg, Russia for an International Tiger Conservation Forum. World Wildlife Fund Director General Jim Leape told the forum that if present trends continue tigers in the wild could become extinct by the year 2022, the next Chinese “year of the tiger.” Three of the nine tiger subspecies -- the Bali, Caspian and Javan tigers -- have become extinct in the last 70 years. Countries represented at the forum pledged renewed cooperation to save the tiger including pledges of an additional $127 million for a Global Tiger Recovery Programme. World Bank President Robert Zoellick announced plans for a $100 million loan to help Nepal, Bangladesh and Bhutan with tiger conservation efforts.

The conference was hosted by Russian Prime Minister Vladimir Putin who declared that the fate of the tiger raises “issues that are critical for the entire planet, humanity and its future.” This represented a rare instance in which Putin has spoken out in favor of conservation efforts, perhaps because the tiger fits with the image of strength he seeks to cultivate. Radhika Lokesh, India’s consul general in St. Petersburg, announced that India would add eight tiger reserves to the 39 it already has and would increase efforts to relocate villages away from tiger habitat.

Delegates from 48 countries have just concluded a two-week conference in Paris to discuss how to protect Atlantic fisheries that are declining due to overfishing. At their 17th annual meeting, members of the International Commission for the Conservation of Atlantic Tunas (ICCAT) voted to ban the fishing and sale of seven species of sharks, but rejected proposals for deep cuts in the harvesting of bluefin tuna. They agreed to reduce 2011 bluefin quotas by only 4% from 13,500 to 12,900 tons. The decision was widely criticized by environmental organizations, including Greenpeace, which sharply criticized the secrecy that surrounded the negotiations. Environmental NGOs also denounced the group’s failure to adopt strong measures to address noncompliance with quotas.

Last week the National Commission on the BP Deepwater Horizon Oil Spill released two staff working papers and the BP Compensation Fund administered by Ken Feinberg shifted into a new phase. The Commission, appointed by President Obama last May, released a report concluding that in the two decades since the 1989 Exxon Valdez spill and the enactment of the Oil Pollution Act of 1990 (OPA90) there had been scant development of oil spill response technology even as oil exploration technology changed rapidly. The report concluded that “industry and government underfunded response R&D, and, as a result, the clean-up technology used” to respond to the spill was “dated and inadequate” (http://www.oilspillcommission.gov/document/responseclean-technology-research-development-and-bp-deepwater-horizon-oil-spill). The second staff report examined efforts to kill the Macondo well, noting that BP had no proven technology for stopping such a deepwater spill and that government agencies were unprepared to oversee the efforts to stop it (http://www.oilspillcommission.gov/document/stopping-spill-five-month-effort-kill-macondo-well). Last week BP’s Gulf Coast Claims Facility, the $20 billion compensation fund run by Ken Feinberg, began accepting claims for final payment of damages from the spill. A copy of the Protocol governing such claims is available online at: http://www.GulfCoastClaimsFacility.com/proto_4 Claimants accepting final payment must “waive any rights the Claimant may have against BP and any other potentially liable parties to assert additional claims, to file an individual legal action, to participate in other legal actions associated with the Spill, or to submit any claim for payment by the National Pollution Funds Center.”

Tomorrow the 16th Conference of the Parties (COP-16) to the United Nations Framework Convention on Climate Change begins in Cancun, Mexico. Expectations for a global agreement to control emissions of greenhouse gases (GHGs) following the 2012 expiration of the Kyoto Protocol have been greatly scaled back as have the number of world leaders who plan to attend the conference. I hope to be able to post guest blog reports from Cancun from Elizabeth Burleson and Alan Miller like they submitted from Copenhagen last year. Due to the failure of Congress to pass cap-and-trade legislation the U.S. arrives at the conference even less capable than China of backing up the submission it made in response to the Copenhagen Accord. The U.S. promised a 17% reduction in its GHG emissions from 2005 levels by the year 2020 (only a 4% reduction from Kyoto’s 1990 baseline) based on what the Waxman-Markey legislation would have achieved. China pledged to reduce the carbon intensity of its economy (GHG emissions per unit of gross domestic product) by 40-45% from 2005 levels by 2020, something that is being incorporated into its new Five Year Plan. (A list of Copenhagen Accord submissions is available online at: http://www.usclimatenetwork.org/policy/copenhagen-accord-commitments). Air pollution was terrible in Beijing last week, as a friend who lives there confirmed in an email to me. The U.S. embassy tweeted that it was “crazy bad” as coal-fired heating systems started up to cope with the cold.

On Tuesday November 23 I spoke on global environmental law to an undergraduate class that is part of the multi-disciplinary Environmental Science and Policy Program at the University of Maryland in College Park. I was very impressed with the class, which is taught by Maryland law alum Joanna Goger. The Environmental Science and Policy Program reflects the increasing focus on environmental issues that is occurring across disciplines at many graduate and undergraduate educational institutions.

A gallery of photos from Maryland’s 2010 Environmental Law Winetasting party, described in the November 21 blog post, is now available online at: http://gallery.me.com/rperci#100735. The theme of each year’s event is “wine -- nature’s thanks for preserving the earth.”

Monday, November 22, 2010

Alex Wang Visit, Int'l Clinical Conference, Mongolia Water & Forest Law, BP Spill Report (by Bob Percival)

Last week was International Law Week at the University of Maryland School of Law. On Monday November 15 we hosted Alex Wang, director of the Environmental Law & Governance Project at the Beijing office of the Natural Resources Defense Council (NRDC). Alex spoke to my Administrative Law class about his work to develop a Pollution Information Transparency Index (PITI) in China. The PITI provides annual ratings of Chinese cities on how well they are implementing China’s Open Information Law, which became effective in May 2008. This is a brilliant project because the local governments are where the power is in China and the wide publicity this kind of U.S. News ranking of cities has received has led many local officials to approach NRDC inquiring about how they can improve their ratings. Alex also spoke about the state of environmental law in China at a lunch for students from the Maryland Environmental Law Society and the Asian and Pacific Law Society.

From Wednesday November 17 to Friday November 19 the University of Maryland Law School hosted a conference on “Re-imagining International Clinical Law.” I was the luncheon speaker on Thursday November 18 and in my talk I discussed the history of my work on global environmental law and how globalization is affecting legal education. I emphasized the need to break down disciplinary barriers that separate clinical education from other parts of the academy and how the “Globalizing Clinical Education” conference that Maryland sponsored in April 2007 tried to encourage U.S. clinicians to expand the focus of their work to embrace global concerns. Friday’s sessions included considerable brainstorming about how to structure international clinical work such as the clinics that Maryland is operating that send our students to Namibia, Mexico, and China.

In 1995 I visited Mongolia to present a week-long environmental law workshop for that country’s new government in a program sponsored by Maryland’s Institutional Reform of the Informal Sector (IRIS) program. One of my indelible memories of that experience, aside from how cold it was in Ulan Bator in February, is overhearing a mining company executive tell a new employee on the flight into the country that as long as you “wear a tie” while visiting the Environment Ministry you don’t have to worry much about the country’s environmental regulations. In July of 2009, Mongolia enacted a new Water and Forest Law that prohibits mining activities in water basins and forest areas. As a result of the law, Dashdorj Zorigt, the country’s minister for mineral resources and energy, has suspended the licenses of 254 gold mining enterprises. A list of 1,700 of the country’s 4,000 other licensed mining enterprises is being reviewed for possible revocation to comply with the law. Under the law exemptions can be granted for mines with “strategic deposits” of minerals, but the Mongolian government can then acquire equity stakes in such projects. Peter Stein, Mongolia Reviews Mine Licenses, Wall St. J., Nov. 20-21, 2010, at B3.

On Tuesday November 16, the National Academy of Engineering released its interim report on the BP oil spill. The report, which had been commissioned by Interior Secretary Ken Salazar last May, concluded that further investigation was necessary before firm conclusions could be drawn about the causes of the spill. But it spread plenty of preliminary blame around, citing a “lack of management discipline” and “lack of onboard expertise and of clearly defined responsibilities” on the Deepwater Horizon oil rig. The report also faulted government regulators for failing to have “sufficient in-house expertise and technical capabilities” to evaluate the safety of industry practices and it noted that regulations had lagged behind the development of new deep water drilling technologies. A copy of the interim report is available at: http://www.nationalacademies.org/includes/DH_Interim_Report_final.pdf

A fierce battle has broken out between Congressmen Joe Barton and Fred Upton over who will assume the chairmanship of the powerful House Energy and Commerce Committee when Republicans assume control of the U.S. House of Representatives in January. Barton, who has been the ranking minority member of the committee, is well known for his insistence that U.S. officials should apologize to BP for asking them to create a compensation fund for the Gulf oil spill. While term limits on committee leadership normally would preclude Barton from taking the chairmanship, he is asking for a waiver and arguing that his chief rival Rep. Fred Upton should be denied the chairmanship because he voted in favor of the Energy Policy Act Amendments of 2007 that have banned the sale of incandescent light bulbs effective in 2014. Stephanie Kirchgaessner, Light Bulb Dispute Darkens Contest to Lead House Energy Panel, Financial Times, Nov. 19, 2010, at 4.

Sunday, November 14, 2010

Bush's "Decision Points" Largely Ignores the Environment, Beijing Environmental Court, Widener Talk & Fordham Conference (by Bob Percival)

Last Monday marked the release of former President George W. Bush’s memoir “Decision Points.” While I have not yet read much of the 512-page book, I have been able to search it electronically to confirm that it makes scant mention of any environmental issues. This is no surprise given the track record of the Bush administration on environmental issues during his eight years in office. Bush notes that the architect of the home he built at his Texas ranch used geothermal heat and recycled water to reduce its environmental impact and in a footnote about governors he mentions that he appointed Governor Mike Leavitt of Utah to become his “Environmental Protection Agency director and Health and Human Services secretary.” There is no other mention of EPA, no mention of the Interior Department, or of Christie Todd Whitman, Gail Norton, or Dirk Kempthorne, and the only time the word “regulation” appears is in connection with the financial crisis. Of course, former President Clinton’s “My Life” memoir, which is nearly twice the length of Bush’s book, mentions EPA Administrator Carol Browner only three times and one of those is in connection with her reaction to the Monica Lewinsky scandal.

Bush’s abrupt March 2001 decision to abandon his campaign promise to regulate emissions of CO2 is never mentioned in “Decision Points” and there are only two references to “climate change”. Bush states that he “worked with President Hu (Jintao of China) to find common ground on issues from North Korea to climate change.” The only other mention of global warming or climate change is his description of his efforts to convince other world leaders that it should not be the primary focus of the G-8 summit in 2007. Bush states that he “was willing to be constructive on the issue,” noting that in his 2006 State of the Union message he had decried America’s addiction to oil “a line that didn’t go over so well with some friends back in Texas.” After citing his efforts to promote alternatives to oil and to bypass “the flawed Kyoto Protocol,” he states: “I worried that the intense focus on climate change would cause nations to overlook the desperate immediate needs of the developing world.” Bush states that he told Angela Merkel, the meeting chair: “If world leaders are going to sit around talking about something that might be a problem fifty years from now, we’d better do something about the people dying from AIDS and malaria right now.” At the end of the book Bush states that by focusing on his most crucial decisions he devotes “just a few words to my record on energy and the environment, and I do not describe my decision to create the largest marine conservation areas in the world.”

Like many other countries, China has been experimenting with the creation of specialized environmental courts in various parts of the country. On Friday November 12, the city of Beijing received its first environmental court, which is located in Yanqing County in northwest Beijing. The court will be empowered to hear civil, administrative, and criminal cases involving environmental pollution. According to the China Daily, it is hoped that the court will be more effective in stopping environmental violations because it can issue administrative orders, award damages and levy criminal penalties against violators. Beijing First Environmental Court Was Established, China Daily, Nov. 14, 2010.

On Tuesday November 9 I visited Widener University School of Law in Harrisburg, Pennsylvania. I gave a luncheon talk on “Liability for Environmental Harm and Emerging Global Environmental Law” as part of the Widener Environmental Law Center’s Environmental Law Distinguished Speaker Series. Professor John Dernbach introduced me. Participating in the luncheon via videoconference were Widener faculty from their Wilmington campus, including Professors Jim May and David Hodas. I started my talk with a short video clip of Professor May performing a post-banquet serenade at the IUCN Academy of Environmental Law Colloquium in Ghent.

On Friday November 12 I spoke at a conference on “Presidential Influence Over Administrative Action,” which was held at Fordham University Law School in New York City. I developed a special interest in this topic as a result of bringing the first successful lawsuit against the Office of Management and Budget’s Office of Information and Regulatory Affairs for illegally blocking EPA’s promulgation of a regulation for which a statutory deadline had expired (EDF v. Thomas, 627 F.Supp. 566 (D.D.C. 1986)). In my talk, “Who’s In Charge? Should the President Have Directive Authority Over Regulatory Decisions Entrusted by Law to Agency Heads?” I argued that while the president’s removal authority gives him enormous influence over agency decisions, he ultimately does not have the authority to dictate them when disagreements arise. Columbia University law professor Peter Strauss gave a presentation in which he supported my view. He also provided a brilliant dissection of the Supreme Court’s recent Free Enterprise Fund decision where the Court struck down an effort by Congress to insulate from presidential removal officers of an agency (the Public Company Accounting Oversight Board) within another agency (the Securities and Exchange Commission). Professor Nina Mendelson of the University of Michigan Law School gave a presentation arguing for a presumption in favor of presidential directive authority. However, she agreed that the president could not sign Federal Register notices promulgating regulations when a statute requires that they be issued by an agency head.

Unfortunately, I could not stay for the afternoon panels of the Fordham conference because I had to be back in Baltimore for our Environmental Law Program’s annual Winetasting Party. We had another large turnout of alumni, students and faculty who had the opportunity to taste 76 different wines from a dozen countries. The wines included some old Bordeauxs from three different Médoc second growths, including three different vintages of Chateau Pichon Lalande, one third growth winery and some old vintage port. Alumni Jani Laskaris won the annual contest to guess the mystery wine, correctly guessing that it was a Greek cabernet, but missing the vintage year.

Monday, November 8, 2010

U.S. Midterm Elections Deepen the Divide, Collapse of U.S. Carbon Trading, EPA Nabs Most Wanted Suspect, Teaching the BP Spill (by Bob Percival)

On Tuesday November 2, the U.S. electorate went to the polls for the 2010 midterm election. As a result of the election, Republicans seized control of the U.S. House of Representatives with a net gain of at least 60 seats. Republicans also gained 6 seats in the Senate, leaving the Democrats with a 53-47 majority. Citing figures compiled by Daily Kos blogger R.L. Miller and Think Progress, the Washington Post reported that at least 35 of the 85 new Republican members of the House are climate change deniers as are 5 of the 6 new Republican senators. This makes it virtually certain that the U.S. Congress will not pass legislation to control emissions of greenhouse gases (GHGs), leaving the task of regulation entirely to EPA which may face fierce opposition from Republicans in Congress. Since the Republicans control only the House many of these battles may be fought over the power of the purse with the House refusing to approve appropriations for EPA activities in an effort to force concessions. One wonders whether too much effort was put into cutting deals with large corporations to win their support for cap-and-trade legislation and not enough effort to educate the grassroots about the importance of actions to control GHG emissions. In a post-election press conference President Obama acknowledged a need to shift strategy, perhaps by emphasizing clean energy and green jobs legislation. Juliet Eilperin & Steven Mufson, Obama SHifting Climate Strategy After GOP Gains, Washington Post, Nov. 5, 2010, at A3.

Even as the U.S. Congress was tilting decidedly against environmental interests, Californians decisively defeated Proposition 23, which would have suspended AB 32, the state’s ambitious program to control GHG emissions. The initiative received less than 40 percent of the vote, losing by a margin of 21 percentage points, the largest defeat of any of the voter initiatives on the ballot, despite an expensive campaign in its favor funded by Texas oil companies. Maryland reelected its Democratic governor Martin O’Malley by a large margin (56 to 42%), spurning the effort by former Republican governor Bob Ehrlich to reclaim the office. While Ehrlich had reasonably decent environmental credentials, even he felt compelled to become a climate “skeptic,” using the flimsy excuse that the “East Anglia emails” had changed his mind.

The failure of Congress to adopt legislation to control GHG emissions will lead to the demise of carbon trading markets in the U.S. Intercontinental Exchange (ICE), which owns the Chicago Climate Exchange and the Chicago Climate Futures Exchange, announced last week that after the end of the year it no longer will process voluntary carbon trades in the U.S. in the absence of legislation that makes such trades valuable. ICE remains bullish on European carbon trading markets where it is earning robust profits. Hal Weitzman, End Looms for Carbon Trading in U.S., Financial Times, November 2, 2010, at 20.

On Friday November 5 a panel of the United Nations released a report proposing to raise $100 billion annually to help developing countries combat climate change through measures to price carbon emissions at $20-25 per ton as well as fees on international aviation and shipping and a tax on foreign exchange transactions. Rejecting a “one size fits all” approach, the panel left it to individual governments to choose the measures they would adopt to meet the financials goals. Fiona Harvey, UN Wants Taxes to Fund Climate Change Fight, Financial Times, Nov. 6-7, 2010, at 3.

A fugitive who was on the U.S. Environmental Protection Agency’s list of most wanted criminal suspects was arrested last week. Albania Deleon, who had disappeared prior to sentencing for environmental crimes in connection with running a fraudulent asbestos training institute, was arrested in Santo Domingo, Dominican Republic. EPA has maintained a list of most wanted suspects for environmental crimes for the last two years. Ms. Deleon is the first woman to be on the list. Leslie Kaufman, Woman Wanted by E.P.A. Is Arrested, N.Y. Times, Nov. 2, 2010.

On Wednesday November 3, the day after the election, my former student Neal Kemkar who is a special assistant to the counselor to the Secretary of Interior came to my Environmental Law class to help us conduct a session on the BP oil spill. Prior to the class we distributed to the students copies of the October 1, 2010 memo that Michael Bromwich, director of the Bureau of Ocean Energy Management, Regulation and Enforcement, had prepared for Secretary Salazar concerning options for lifting the moratorium on offshore drilling. We asked the students to choose from among the five options in the memo and to defend their choice. Then we gave them copies of Secretary Salazar’s memo explaining the option that he selected. I have been trying to integrate aspects of the BP oil spill throughout my environmental law class. When we studied NEPA we examined the Council of Environmental Quality’s August 16, 2010 “Report Regarding the Minerals Management Service’s National Environmental Policy Act Policies, Practices, and Procedures as They Relate to Outer Continental Shelf Oil and Gas Exploration and Development.” The students considered whether the spill could have been prevented if additional environmental assessment had been conducted, an issue that generated considerable skepticism given the gross inadequacies of some of the assumptions in the environmental reviews that were conducted.

Monday, November 1, 2010

University of Chile V Jornadas, Nagoya CBD COP-10 (by Bob Percival)

Yesterday I returned from a week in Chile where I spoke at the Fifth Conference on Environmental Law (V Jornadas) sponsored by the University of Chile’s Center for Environmental Law (Centro Derecho Ambiental or CDA). Every two years the University of Chile’s CDA holds one of the most outstanding environmental law conferences in the world. This year’s theme was “Environmental Law in Times of Reform.” I spoke at the opening of the conference on Wednesday October 27, following an opening address by Maria Ignacia Benítez Pereira, Chile’s Minister of the Environment.

Chile is upgrading its environmental laws by replacing a relatively weak and decentralized system with a new and more powerful federal environmental agency that will have responsibility not only for pollution control, but also for management of protected areas. In fact, the minister indicated that the Environment Ministry may become the largest agency in the entire Chilean government. Even the election of a new and more conservative government, which took power in March 2010, has not slowed down the progress of environmental reform. In fact, the government of Sebastián Piñera is said to have speeded up the process of reform. It was striking to hear the praise the new environment minister heaped on her predecessor, Ana Lya Uriarte, who is now a professor at the CDA. Environmental protection seems to be such a priority for Chile that there is bipartisan support for strengthening the country’s environmental laws. After some of the first public demonstrations in Chile organized through Facebook and Twitter, President Piñera surprised environmentalists by agreeing to cancel a new coal-fired powerplant in northern Chile.

I was delighted to be reunited with Carlos SIlva, a former student of mine, who has become the chief prosecutor for the Chilean Environment Ministry. My wife, who is responding well to chemotherapy, accompanied me on the trip and we had a wonderful time visiting the places we used to hang out at while waiting for our daughter’s adoption to be approved. We also were delighted to spend an afternoon on a private tour of Almaviva winery in Puente Alto, the Santiago suburb where our daughter was born. Our luggage did not make a close connection in Miami so I had to purchase a coat, tie and dress shirt at a Santiago department store in order to look presentable for my talk. We were able to inspect the rescue capsule that was used to pull the 33 trapped Chilean miners to safety, which was on display in the Plaza Constitucion in front of the Law Moneda presidential palace. Photos of the trip are available online at: http://gallery.me.com/rperci#100734.

Like China, Chile appears to be a country on the cusp between the developing and developed worlds. While Chilean courts have not been friendly to public interest environmental litigation, slow progress is being made. Last year a court finally blocked a project for having an inadequate environmental impact assessment. The government was still able to proceed with the project within a few months, disappointing many environmentalists. Another court has required a private landowner who illegally destroyed thousand-year old trees to pay compensation for ecological damages. While Chile’s emissions of greenhouse gases (GHG) are small in absolute terms, they are growing rapidly as the country’s economy expands. Even though the Kyoto Protocol does not require Chile to reduce its GHG emissions, the government has pledged to reduce them. A pilot program asking Chileans in one jurisdiction to buy carbon offsets when they renew their driver’s registration received a 20% positive response. Some concern was expressed about the impact of GHG footprint labeling program in France on the export of Chilean goods to Europe.

In their presentation on environmental courts, Rock and Kitty Pring from the University of Denver noted that the Chilean government is considering establishing a national environmental tribunal. Surprisingly, they found that the primary motivation for the tribunal is coming from private industry, which is fearful that the new national environmental agency will be too powerful. The environmental tribunal would serve as a vehicle for industry to appeal decisions by the Ministry of Environment, though environmental NGOs would be allowed to appear before the tribunal as amici.

Meanwhile the Tenth Conference of the Parties to the Convention on Biological Diversity (COP-10) concluded in Nagoya, Japan, which some hopeful developments. The 193 countries represented at the conference committed to increase their efforts to protect endangered species and developed countries agreed to share more of the benefits of genetic resources obtained from the developing world. The parties agreed a 10-year strategy to boost protected land areas to 17% of the world and to inxrease marine protected areas to cover 10% of the oceans by 2020. Unfortunately there was less agreement on measures to increase funding from developed countries to assist developing countries in protecting habitat for endangered species.